EXHIBIT 10.4
Draft: 18 August 2000
________________________________________________________________________________
Securitisation Advisory Services Pty. Limited
Manager
Commonwealth Bank of Australia
CBA and Party A
Perpetual Trustee Company Limited
Party B
▇▇▇▇▇▇▇ ▇▇▇▇▇ International (Australia) Limited
MLIA and Standby Swap Provider
Series 2000-2G Medallion Trust
ISDA Master Agreement
(Currency Swap Agreement)
Levels 23-35 No ▇ ▇'▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ DX ▇▇▇ ▇▇▇▇▇▇
Tel + ▇▇ ▇ ▇▇▇▇ ▇▇▇▇ Fax + ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Our ref - 164/642/1545256 Contact - ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Sydney . Melbourne . Brisbane . Perth . Canberra . Darwin
Liability is limited by the Solicitors Scheme under the Professional
Standards Act 1994 NSW
Schedule
to the
MASTER AGREEMENT
dated as of 2000 between
Securitisation Advisory Services Pty. Limited
ACN 064 133 946
("Manager")
and
Commonwealth Bank of Australia
ACN 123 123 124
("CBA" and "Party A")
and
Perpetual Trustee Company Limited
ACN 000 001 007
in its capacity as trustee of various Series Trusts from time to time
established under the Master Trust Deed and various Series Supplements
("Party B")
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ International (Australia) Limited ABN 31 002 892 846
("MLIA" and "Standby Swap Provider")
Part 1. Termination provisions.
In this Agreement:
(a) "Specified Entity" does not apply in relation to Party A or Party B.
(b) The definition of "Specified Transaction" is not applicable.
(c) (i) The following provisions of Section 5 will not apply to Party A:
Section 5(a)(ii) Section 5(a)(v)
Section 5(a)(iii) Section 5(a)(vi)
Section 5(a)(iv) Section 5(b)(iv)
(ii) The following provisions of Section 5 will not apply to Party
B:
Section 5(a)(ii) Section 5(a)(v) Section 5(a)(viii)
Section 5(a)(iii) Section 5(a)(vi) Section 5(b)(iv)
Section 5(a)(iv) Section 5(b)(iv)
Section 5(b)(ii) will not apply to Party A as the Affected Party
(subject to Part 5(6)(b) of this Schedule) and Section 5(b)(iii)
will not apply to Party A as the Burdened Party.
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(d) The "Automatic Early Termination" provisions in Section 6(a) will not
apply to Party A or Party B.
(e) Payments on Early Termination. For the purposes of Section 6(e) of
this Agreement:
(i) Market Quotation will apply; and
(ii) the Second Method will apply.
(f) "Termination Currency" means US$ provided that if an amount due in
respect of an Early Termination Date will be payable by Party B to
Party A the Termination Currency for the purpose of calculating and
paying that amount is Australian Dollars.
(g) "Additional Termination Event" applies. The following is an Additional
Termination Event in relation to which both Party A and Party B are
Affected Parties:
"An Event of Default (as defined in the Relevant Security Trust Deed)
occurs and the Security Trustee has declared, in accordance with the
Relevant Security Trust Deed, the Relevant Notes immediately due and
payable."
For the purposes of calculating a payment due under Sections 6(d) and
(e) when an Early Termination Date is designated under Section 6(b) as
a result of such Additional Termination Event, Party B will be the
only Affected Party.
Part 2. Tax representations
(a) Payer Tax Representations. For the purpose of Section 3(e) of this
Agreement, Party A and Party B each make the following representation:
It is not required by any applicable law, as modified by the practice
of any relevant government revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e) of this Agreement) to be made by it to any other
party under this Agreement. In making this representation, it may rely
on:
(i) the accuracy of any representation made by that other party
pursuant to Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement contained in Section 4(a)(i)
or 4(a)(iii) of this Agreement and the accuracy and
effectiveness of any document provided by that other party
pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement; and
(iii) the satisfaction of the agreement of that other party contained
in Section 4(d) of this Agreement,
PROVIDED THAT it shall not be a breach of this representation where
reliance is placed on clause (ii) and the other party does not deliver
a form or document under Section 4(a)(iii) by reason of material
prejudice to its legal or commercial position.
(b) Payee Tax Representations. For the purpose of Section 3(f) of this
Agreement CBA as Party A, Party B and MLIA as Standby Swap Provider
and (on and from the Novation Date) as Party A makes the following
representation:
It is an Australian resident and does not derive payments under this
Agreement in part or whole in carrying on a business in a country
outside Australia of or through a permanent establishment of itself in
that country.
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Part 3. Agreement to deliver Documents
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver to each other party the following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:
Party required to deliver Form/Document/Certificate Date by which to be delivered
document
Party A, Party B, and the Any document or certificate On the earlier of (a) learning
Standby Swap Provider reasonably required or reasonably that such document or
requested by a party in connection certificate is required and
with its obligations to make a (b) as soon as reasonably
payment under this Agreement which practicable following a request
would enable that party to make by a party.
the payment free from any
deduction or withholding for or on
account of Tax or which would
reduce the rate at which deduction
or withholding for or on account
of Tax is applied to that payment
as requested by Party A with
respect to any payments received
by Party B.
(b) Other documents to be delivered are:
Party required to deliver Form/Document/Certificate Date by which to be delivered
document
Party A, Party B, the A certificate specifying the On the execution of this
Standby Swap Provider names, title and specimen Agreement and each
and the Manager signatures of the persons Confirmation unless that
authorised to execute this certificate has already been
Agreement and each Confirmation or supplied and remains true and
other communication in writing in effect and when the
made pursuant to this Agreement on certificate is updated.
its behalf.
Party A, Party B, the A legal opinion as to the validity Prior to the Closing Date.
Standby Swap Provider and enforceability of its
and the Manager obligations under this Agreement
in form and substance (and issued
by legal counsel) reasonably
acceptable to each other party.
Party B A certified copy to Party A of each Not less than 5 Business Days
Credit Support Document specified (or such lesser period as
in respect of Party B and (without Party A agrees to) before the
limiting any obligation Party B may Trade Date of the first
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have under the terms of that Credit occurring Transaction and in
Support Document to notify Party the case of any amending
A of amendments thereto) a documents entered into
certified copy to Party A of any subsequent to that date,
document that amends in any way promptly after each amending
the terms of that Credit Support document (if any) has been
Document. entered into.
Standby Swap Provider Original executed copies to Party B Not less than 5 Business Days
and Party A and a certified copy to (or such lesser period as
the Manager of each Credit Support Party B and the Manager agree
Document (if any) specified in to) before the Trade Date of
respect of the Standby Swap the first occurring
Provider and (without limiting any Transaction and in the case of
obligation the Standby Swap any amending documents entered
Provider may have under the terms into subsequent to that date,
of that Credit Support Documents promptly after each amending
to notify Party B, Party A or the document (if any) has been
Manager of amendments thereto) entered into.
original executed copies to Party B
and Party A and a certified copy to
the Manager of any document that
amends in any way the terms of that
Credit Support Document.
Other than the legal opinions, any Credit Support Document or any document
amending a Credit Support Document (but including any certifications in relation
to such documents), all documents delivered under this Part 3(b) are covered by
the Section 3(d) representation. For the purposes of this Part 3(b), a copy of a
document is taken to be certified if a director or secretary of the party
providing the document, or a person authorised to execute this Agreement or a
Confirmation on behalf of that party or a solicitor acting for that party has
certified it to be a true and complete copy of the document of which it purports
to be a copy.
Part 4. Miscellaneous
(a) Addresses for Notices. For the purpose of Section 12(a) of this
Agreement:
Address for notices or communications to MLIA as Standby Swap Provider
and (on and from the Novation Date) as Party A:
Address:
▇▇▇▇▇▇▇ ▇▇▇▇▇ International (Australia) Limited
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Attention: Manager, Operations
Telex AA24498
Answerback: M ▇▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇▇▇ 6655Telephone No.: ▇▇▇ ▇▇▇▇ ▇▇▇▇ Address for
notices or
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communications to Party B:
Address: Perpetual Trustee Company Limited
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Attention: Manager, Securitisation Services
Facsimile No.: 612 9221 7870
Additionally, a copy of all notices as well as any changes to
counterparty's address, telephone number or facsimile number should be
sent to:
Address: Securitisation Advisory Services Pty. Limited
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Attention: Manager, Securitisation
Facsimile No.: 612 9378 2481
Address for notices or communications to CBA as Party A:
Address: Commonwealth Bank of Australia
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Attention: Manager, Securitisation
Facsimile No.: 612 9378 2481
Additionally, a copy of all notices pursuant to Sections 5, 6 and 7 as
well as any changes to counterparty's address, telephone number or
facsimile number should be sent to the Standby Swap Provider at the
addresses set out above.
(b)] Process Agent. For the purpose of Section 13(c) of this Agreement:
MLIA as Standby Swap Provider and (on and from the Novation Date) as
Party A appoints as its Process Agent: not applicable.
Party B appoints as its Process Agent: not applicable.
CBA as Party A appoints as its Process Agent: not applicable.
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
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(e) Calculation Agent.
(i) The Calculation Agent is:
(A) in respect of all notices, determinations and calculations
in respect of amounts denominated in US$, the Agent Bank;
and
(B) in respect of all other notices, determinations and
calculations, the Manager.
(ii) All determinations and calculations by the Calculation Agent
will:
(A) be made in good faith and in the exercise of its commercial
reasonable judgment; and
(B) be determined, where applicable, on the basis of then
prevailing market rates or prices.
All such determinations and calculations will be binding on Party A
and Party B in the absence of manifest error. The Manager (or, if the
Manager fails to do so and Party A notifies Party B, Party B)
covenants in favour of Party A to use reasonable endeavours
(including, without limitation, taking such action as is reasonably
necessary to promptly enforce the obligations of the Agent Bank under
the Agency Agreement) to ensure that the Agent Bank performs its
obligations as Calculation Agent under this Agreement.
(f) Credit Support Document. Details of any Credit Support Document:
(i) In relation to MLIA as Standby Swap Provider and (on and from
the Novation Date) as Party A: A Guarantee from ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Co. Inc ("M L & Co.") in respect of the Series Trust in the form
attached hereto as Annexure 2.
(ii) In relation to Party B: the Security Trust Deed.
(iii) In relation to CBA as Party A: not applicable.
(g) Credit Support Provider.
(i) In relation to MLIA as Standby Swap Provider and (on and from
the Novation Date) as Party A: M L & Co.
(ii) In relation to Party B: None.
(iii) In relation to CBA as Party A: none.
(h) Governing Law. This Agreement will be governed by and construed in
accordance with the laws in force in New South Wales, except the
Credit Support Annex, which will be governed by and construed in
accordance with the laws in force in the State of New York as provided
in Paragraph 13(m)(iv) of the Credit Support Annex. Section 13(b)(i)
is deleted and replaced by the following:
"(i) submits to the non-exclusive jurisdiction of the courts of
New South Wales and courts of appeal from them; and".
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) of this
Agreement will apply in respect of all Transactions.
(j) "Affiliate" will have the meaning specified in Section 14 of this
Agreement. However, for the purposes of Section 3(c) Party B is deemed
not to have any Affiliates.
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Part 5. Other Provisions
(1) Payments: In Section 2:
(a) In Section 2(a)(i) add the following sentence:
"Each payment will be by way of exchange for the corresponding
payment or payments payable by the other party (if any)".
(b) In Section 2(a)(ii) the first sentence is deleted and replaced
with the following sentence:
"Unless specified otherwise in this Agreement, payments under
this Agreement by:
(i) Party A, will be made by 10.00 am (New York time); and
(ii) Party B, will be made by 4.00pm (Sydney time),
on the due date for value on that date in the place of the
account specified in the relevant Confirmation or otherwise
pursuant to this Agreement, in freely transferable funds, free
of any set-off, counterclaim, deduction or withholding (except
as expressly provided in this Agreement) and in the manner
customary for payment in the required currency.".
(c) Insert a new paragraph (iv) in Section 2(a) immediately after
Section 2(a)(iii) as follows:
"(iv) The condition precedent in Section 2(a)(iii)(1) does not
apply to a payment due to be made to a party if it has
satisfied all its payment obligations under Section
2(a)(i) of this Agreement and has no future payment
obligations, whether absolute or contingent under Section
2(a)(i)."
(d) Add the following new sentence to Section 2(b):
"Each new account so designated shall be in the same tax
jurisdiction as the original account."
(e) Amend Section 2(d) as follows:
(i) Delete the word "if" at the beginning of Section
2(d)(i)(4) and insert the following words instead:
"if and only if X is Party A and".
(ii) In Section 2(d)(ii) insert the words "(if and only if Y is
Party A)" after the word "then" at the beginning of the
last paragraph.
Without prejudice to the above amendments, it is agreed that
Party B:
(iii) is not obliged to pay:
(1) any additional amount to Party A under Section
2(d)(i)(4); or
(2) any amount to Party A under Section 2(d)(ii); and
(iv) will not receive payments under this Agreement or any
Transaction from which deductions or withholdings have
been made.
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(2) Party B's Payment Instructions: Party B irrevocably authorises and
instructs Party A to make payment of:
(i) the Initial Exchange Amount due from Party A to Party B in
respect of the Initial Exchange Date by paying that amount
direct to the account notified in writing by Party B to Party A
for that purpose; and
(ii) any other amount due from Party A to Party B under this
Agreement by paying that amount direct to the Principal Paying
Agent to the account outside Australia notified in writing by
the Principal Paying Agent to Party A for that purpose.
(3) Party A's Payment Instructions: Party A irrevocably authorises and
instructs Party B to make payment of:
(i) any amount denominated in A$ due from Party B to the account in
Sydney notified in writing by Party A to Party B from time to
time; and
(ii) any amount denominated in US$ due from Party B to the account
notified in writing by Party A to Party B from time to time.
(4) Representations: In Section 3:
(a) Section 3(a)(v) is amended by inserting immediately after the
words "creditors' rights generally" the following:
"(including in the case of a party being an ADI (as that term is
defined in the Reserve Bank Act, 1959 (Cth)) and section 13A(3)
of the Banking Act, 1959 (Cth)).";
(b) Relationship Between Parties. Each party will be deemed to
represent to the other parties on the date on which it enters
into a Transaction that (absent a written agreement between the
parties that expressly imposes affirmative obligations to the
contrary for that Transaction):-
(i) Non-Reliance. It is acting for its own account (in the
case of Party B, as trustee of the Series Trust), and it
has made its own independent decisions to enter into that
Transaction and as to whether that Transaction is
appropriate or proper for it based upon its own judgment
(and in the case of Party B, also on the judgment of the
Manager) and upon advice from such advisers as it has
deemed necessary. It is not relying on any communication
(written or oral) of any other party as investment advice
or as a recommendation to enter into that Transaction; it
being understood that information and explanations related
to the terms and conditions of a Transaction will not be
considered investment advice or a recommendation to enter
into that Transaction. No communication (written or oral)
received from any other party will be deemed to be an
assurance or guarantee as to the expected results of that
Transaction.
(ii) Evaluation and Understanding. It is capable of evaluating
and understanding (on its own behalf or through
independent professional advice), and understands and
accepts, the terms, conditions and risks of that
Transaction. It is also capable of assuming, and assumes,
the risks of that Transaction.
(iii) Status of Parties. No other party is acting as a fiduciary
or an adviser to it in respect of that Transaction.
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(c) insert the following new paragraphs (g), (h) and (i) in Section
3 immediately after Section 3(f):
(g) Series Trust. By Party B, in respect of Party B only:
(i) Trust Validly Created. The Series Trust has been
validly created and is in existence at the Trade
Date of the first occurring Transaction.
(ii) Sole Trustee. It has been validly appointed as
trustee of the Series Trust and is presently the
sole trustee of the Series Trust.
(iii) No Proceedings to Remove. No notice has been given
to it and to its knowledge no resolution has been
passed, or direction or notice has been given,
removing it as trustee of the Series Trust.
(iv) Power. It has power under the Master Trust Deed to:
(A) enter into and perform its obligations under
this Agreement and each Credit Support
Document in relation to Party B in its
capacity as trustee of the Series Trust; and
(B) mortgage or charge the Assets of the Series
Trust in the manner provided in the Credit
Support Document in relation to Party B,
and its entry into this Agreement and each Credit
Support Document in relation to Party B is in the
interests of the beneficiaries of the Series Trust
and does not constitute a breach of trust.
(v) Good Title. It is the lawful owner of the Assets of
the Series Trust and, subject only to the Credit
Support Document in relation to Party B and any
Security Interest permitted under the Credit Support
Document in relation to Party B, those Assets are
free of all other Security Interests (except for
Party B's right of indemnity out of the Assets of
the Series Trust).
(vi) Eligible Swap Participant. The Series Trust was not
formed for the specific purpose of constituting an
eligible swap participant (as that term is used in
Part 35 of the General Regulations under the
Commodity Exchange Act).
(vii) Total Assets. As at close of business on the Trade
Date of the first occurring Transaction, following
the issue of the Relevant Notes and provided that
the aggregate Invested Amount of the Relevant Notes
upon issue exceeds USD10,000,000, the Series Trust
will have total assets exceeding USD10,000,000.
(h) Non-assignment. It has not assigned (whether absolutely,
in equity, by way of security or otherwise), declared any
trust over or given any charge over any of its rights
under this Agreement or any Transaction except, in the
case of Party B, for the Security Interests created under
each Credit Support Document in relation to Party B.
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(i) Contracting as principal. Each existing Transaction has
been entered into by that party as principal and not
otherwise."
(5) Event of Default: In Section 5(a):
(a) Failure to Pay or Deliver: delete paragraph (i) and replace it
with the following:
""(i) Failure to Pay or Deliver. Failure by the party to make,
when due, any payment under this Agreement or delivery
under Section 2(a)(i) or 2(e) required to be made by it if
such failure is not remedied at or before:
(1) where the failure is by Party B, 10.00am on the
tenth day after notice of such failure is given to
Party B;" and
(2) where the failure is by Party A, 10.00am on the
tenth day after notice of such failure is given to
Party A;";
(b) Consequential amendments:
(i) delete "or" at the end of Section 5(a)(vii); and
(ii) replace the full stop at the end of Section 5(a)(viii)
with "; or"; and
(c) Downgrade Obligations: insert the following new paragraph (ix):
"(ix) Downgrade Obligations. In respect of Party A only, Party A
fails to comply with Part 5(22) of the Schedule if such
failure is not remedied on or before the tenth Business
Day (or such later day as Party B and the Manager may
agree and which the Rating Agencies confirm in writing
will not result in a reduction, qualification or
withdrawal of the credit ratings then assigned by them to
the Relevant Notes) after notice of such failure is given
to Party A.".
(6) Termination Events:
(a) Illegality: In respect of each Transaction, the parties agree
that the imposition by any Governmental Agency of an Australian
jurisdiction of any exchange controls, restrictions or
prohibitions which would otherwise constitute an Illegality for
the purposes of Sections 5(b)(i) or 5(c) will not be an event
which constitutes an Illegality for the purposes of those
Sections so that, following the occurrence of that event:
(i) neither Party A nor Party B will be entitled to designate
an Early Termination Date in respect of that Transaction
as a result of that event occurring;
(ii) payment by Party B in accordance with Part 5(3) of the
Schedule will continue to constitute proper performance of
its payment obligations in respect of that Transaction;
and
(iii) Party A's obligations in respect of that Transaction or
this Agreement will, to the extent permitted by law, be
unaffected by the occurrence of that event.
(b) Party A's limited rights in relation to Tax Event:
(i) Notwithstanding Part 1(c)(iii) of the Schedule, but
subject to Section 6(b)(ii), Party A may designate an
Early Termination Date if it is an Affected Party
following a Tax Event but only if the Relevant Note
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Trustee has notified the parties in writing that it is
satisfied that all amounts owing to the Relevant
Noteholders will be paid in full on the date on which the
Relevant Notes are to be redeemed.
(ii) If a Tax Event occurs where Party A is the Affected Party
and Party A is unable to transfer all its rights and
obligations under this Agreement and each Transaction to
an Affiliate pursuant to Section 6(b)(ii), Party A may, at
its cost, transfer all its rights, powers and privileges
and all its unperformed and future obligations under this
Agreement and each Transaction to any person provided
that:
(A) each Rating Agency has confirmed in writing that the
transfer will not result in a reduction,
qualification or withdrawal of the credit ratings
then assigned by them to the Relevant Notes; and
(B) that person has a long term credit rating assigned
by each Rating Agency of at least the long term
credit rating assigned by that Rating Agency to CBA
as at the date of this Agreement or, otherwise, the
Standby Swap Provider provides its written consent
to the transfer.
(7) Termination:
(a) Termination by Trustee: Party B must not designate an Early
Termination Date without the prior written consent of the
relevant Note Trustee.
(b) Termination by the Relevant Note Trustee: If following an Event
of Default or Termination Event, Party B does not exercise its
right to terminate a Transaction, then the relevant Note Trustee
may designate an Early Termination Date in relation to that
Transaction as if it were a party to this Agreement.
(c) Termination Payments by Party B: Notwithstanding Section
6(d)(ii), any amount calculated as being due by Party B in
respect of any Early Termination Date under Section 6(e) will be
payable on the Distribution Date immediately following the date
that such amount would otherwise be payable under Section
6(d)(ii) (or will be payable on that date if that date is a
Distribution Date) except to the extent that such amount may be
satisfied from an earlier distribution under the relevant
Security Trust Deed or the payment of an upfront premium in
respect of a Replacement Currency Swap in accordance with Part
5(17)(b).
(d) Transfers to avoid Termination: Section 6(b)(ii) is amended as
follows:
(i) The following sentence is added at the end of the second
paragraph:
"However, if Party A is that other party it must, if so
requested by the Manager, use reasonable efforts (which
will not require Party A to incur a loss, excluding
immaterial, incidental expenses) to make such a transfer
to an Affiliate provided the Rating Agencies have given
prior written confirmation to the Manager that such a
transfer will not result in a reduction, qualification or
withdrawal of the credit ratings then assigned by them to
the relevant Notes."
(ii) The third paragraph is deleted and replaced with the
following:
"Any such transfer by a party under this Section 6(b)(ii)
will be subject to and conditional upon the prior written
consent of the other party, which consent will not be
withheld:
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(1) where the other party is Party A, if Party A's
policies in effect at such time would permit it to
enter into transactions with the transferee on the
terms proposed; or
(2) where the other party is Party B, if the Rating
Agencies have confirmed in writing that such
transfer will not result in a reduction,
qualification or withdrawal of the credit ratings
then assigned by them to the Relevant Notes.
(e) Notice of Event of Default. For the purposes of Section 6(a) and
(b):
(i) Party A may only provide a notice specifying an Event of
Default to Party B as the Defaulting Party and may only
designate an Early Termination Date following a
Termination Event where Party A or Party B (or both) is
the Affected Party or the Burdened Party; and
(ii) the Standby Swap Provider may not issue a notice
specifying an Event of Default or designating an Early
Termination Date (except as Party A on or after the
Novation Date).
(8) No Set-Off: Section 6(e) is amended by deleting the last sentence of
the first paragraph.
(9) Transfer: Section 7 is replaced with:
"7. Essential term: Transfer
(a) Neither the interests nor the obligations of any party in or
under this Agreement (including any Transaction) are capable of
being assigned or transferred (whether at law, in equity or
otherwise), charged or the subject of any trust (other than the
Series Trust or the trusts created pursuant to the Credit
Support Document in relation to Party B) or other fiduciary
obligation. Any action by a party which purports to do any of
these things is void.
(b) Nothing in this Section 7:
(i) restricts a transfer by a party after the other parties
have agreed to the variation of this Agreement in
accordance with Part 5(20) to the extent necessary to
permit such transfer;
(ii) restricts a novation of the interests and obligations of a
party in or under this Agreement (including any
Transaction) for the purposes of giving effect to a
transfer under Section 6(b)(ii);
(iii) restricts a transfer by a party of all or any part of its
interest in any amount payable to it from a Defaulting
Party under Section 6(e);
(iv) restricts a transfer by Party B or the Manager to a
Substitute Trustee or Substitute Manager, respectively, in
accordance with the Master Trust Deed;
(v) restricts Party B from granting security over a
Transaction or this Agreement pursuant to any Credit
Support Document in relation to Party B; or
(vi) limits Parts 5(6)(b)(ii), 5(22), 5(23) or 5(24).
(c) Each party acknowledges that the other party enters into this
Agreement and each Transaction on the basis that this Section 7
must be strictly observed and is essential to the terms of this
Agreement (including each Transaction)."
13
(10) Facsimile Transmission: In Section 12:
(a) delete Section 12(a)(ii); and
(b) replace Section 12(a)(iii) with:
"(iii) if sent by facsimile transmission:
(A) in the case of any notice or other communication
pursuant to Parts 5(23) or (24), on the date that
transmission is received by a responsible employee of
the recipient in legible form (it being agreed that
the burden of proving receipt will be on the sender
and will not be met by a transmission report
generated by the sender's facsimile machine); or
(B) otherwise, on the date a transmission report is
produced by the machine from which the facsimile was
sent which indicates that the facsimile was sent in
its entirety to the facsimile number of the recipient
notified for the purpose of this Section unless the
recipient notifies the sender within one Business Day
of the facsimile being sent that the facsimile was
not received in its entirety in legible form;".
(11) Definitions
In this Agreement, unless the contrary intention appears:
(a) Master Trust Deed: subject to Part 5(11)(h), unless defined in this
Agreement words and phrases defined in the Master Trust Deed and the
Series Supplement have the same meaning in this Agreement. Subject to
Part 5(11)(h), where there is any inconsistency in a definition
between this Agreement (on the one hand) and the Master Trust Deed or
a Series Supplement (on the other hand), this Agreement prevails.
Where there is any inconsistency in a definition between the Master
Trust Deed (on the one hand) and the Series Supplement (on the other
hand), the Series Supplement, prevails over the Master Trust Deed in
respect of that Series Trust. Where words or phrases used but not
defined in this Agreement are defined in the Master Trust Deed in
relation to a Series Trust (as defined in the Master Trust Deed) such
words or phrases are to be construed in this Agreement, where
necessary, as being used only in relation to the Series Trust;
(b) Trustee Capacity:
(i) a reference to Party B is a reference to Party B in its
capacity as trustee of the Series Trust only, and in no
other capacity; and
(ii) a reference to the undertaking, assets, business or money of
Party B is a reference to the undertaking, assets, business
or money of Party B in the capacity referred to in paragraph
11(b)(i) only;
(c) Definitions: in Section 14:
(i) replace the definitions of "Affected Transactions" and
"Local Business Day" with the following:
""Affected Transactions" means, with respect to a
Termination Event, all Transactions."
""Local Business Day" has the same meaning as "Business
Day"."
14
(ii) insert the following new definitions:
"BBSW" or "AUD-BBR-BBSW" in relation to a Calculation Period
means the rate appearing at approximately 10.00 am Sydney
time on the Reset Date for that Calculation Period on the
Reuters Screen page "BBSW" as being the average of the mean
buying and selling rates appearing on that page for a ▇▇▇▇
of exchange having a tenor of three months. If:
(a) on that Reset Date fewer than 4 banks are quoted on
the Reuters Screen page "BBSW"; or
(b) for any other reason the rate for that day cannot be
determined in accordance with the foregoing
procedures,
then "BBSW" or "AUD-BBR-BBSW" means such rate as is
specified by the Calculation Agent having regard to
comparable indices then available.
"Credit Support Annex" means the Credit Support Annex
annexed to this Agreement.
'Distribution Date" has the meaning given in Section |16.
"Inconvertibility Event" means any event beyond the control
of CBA that makes it impossible for CBA to convert to U.S.
Dollars through customary legal channels an amount of
Australian Dollars sufficient to fulfil CBA's obligations
under this Agreement and each Transaction.
"Joint Ratings" means the highest possible jointly supported
short term credit rating or long term credit rating, as
applicable, that can be determined in relation to Party A
and the Standby Swap Provider by ▇▇▇▇▇'▇, S&P and Fitch in
accordance with ▇▇▇▇▇'▇, S&P's and Fitch's respective
approaches to jointly supported obligations provided that if
either Party A or the Standby Swap Provider has a long term
credit rating of less than BBB from S&P the Joint Ratings
from S&P will be the credit ratings of the other party.
"Master Trust Deed" means the Master Trust Deed dated 8
October 1997 between Party B and the Manager, as amended
from time to time.
"MLIA/CBA ISDA Master Agreement" means the ISDA Master
Agreement dated 20 November 1995 between MLIA and CBA, as
amended from time to time.
"Novation Date" means the date upon which the obligations of
CBA as Party A under this Agreement and each Transaction are
novated to the Standby Swap Provider pursuant to Part
5(24)(c).
"Prescribed Rating Period" means in relation to the Joint
Ratings determined by the Rating Agencies:
(a) a period of 30 Business Days from the date of
determination of the relevant credit rating where any
Joint Rating immediately after that determination is
less than the relevant Prescribed Rating but greater
than or equal to a short term credit rating of A-1 by
S&P and long term credit ratings of ▇-
▇▇
by S&P, A3 by ▇▇▇▇▇'▇ and A- by Fitch , as the case
may be; and
(b) a period of 5 Business Days from the date of
determination of the relevant credit rating where any
Joint Rating immediately after that determination is
less than a short term credit rating of A-1 by S&P or
less than a long term credit rating of A- by S&P, A3
by ▇▇▇▇▇'▇ and A- by Fitch.
"Prescribed Ratings" means a short term credit rating of A-
1+ by S&P or a long term credit rating of AA- by S&P and
long term credit ratings of AA- by Fitch and A2 by ▇▇▇▇▇'▇.
"Relevant Calculation Amount" has the meaning given in
Section 16.
"Relevant Notes" has the meaning given in Section 16.
"Relevant Note Trustee" has the meaning given in Section
16.
"Relevant Noteholders" has the meaning given in Section
16,
"Relevant Maturity Date" has the meaning given in Section
16.
"Series Supplement" has the meaning given in Section 16.
"Series Trust" has the meaning given in Section 16.
(d) Interpretation:
(i) references to time are references to Sydney time;
(ii) a reference to "wilful default" in relation to Party B
means, subject to Part 5(11)(d)(iii) of this Schedule, any
wilful failure by Party B to comply with, or wilful breach
by Party B of, any of its obligations under any Transaction
Document, other than a failure or breach which:
A. (1) arises as a result of a breach of a
Transaction Document by a person other than:
(a) Party B; or
(b) any other person referred to in Part
5(11)(d)(iii) of this Schedule; and
(2) the performance of the action (the non-
performance of which gave rise to such breach)
is a precondition to Party B performing the
said obligation;
B. is in accordance with a lawful court order or
direction or required by law; or
C. is in accordance with any proper instruction or
direction of the Investors given at a meeting
convened under the Master Trust Deed;
(iii) a reference to the "fraud", "negligence" or "wilful default"
of Party B means the fraud, negligence or wilful default of
Party B and of its officers, employees, agents and any other
person where Party B is liable
16
for the acts or omissions of such other person under the
terms of any Transaction Document;
(iv) a reference to "neither party" will be construed as a
reference to "no party";
(v) a reference to "other party" will be construed as a
reference to "other parties"; and
(vi) a reference to a credit rating of MLIA means the higher of
the relevant credit ratings of MLIA and M L & Co.
(e) ISDA Definitions: The 1991 ISDA Definitions (as published by the
International Swaps and Derivatives Association, Inc ("ISDA")), as
supplemented by the 1998 Supplement to the 1991 ISDA Definitions (as
published by ISDA) (the "1991 ISDA Definitions") as at the date of
this Agreement are incorporated into this Agreement and each
Confirmation.
(f) Inconsistency: Subject to Part 5(11)(a), unless specified otherwise,
in the event of any inconsistency between any two or more of the
following documents in respect of a Transaction they will take
precedence over each other in the following order in respect of that
Transaction:
(i) any Confirmation;
(ii) this Schedule and Section 13 ("Elections and Variables") of
the Credit Support Annex (as applicable);
(iii) the 1991 ISDA Definitions; and
(iv) the printed form of the 1992 ISDA Master Agreement and the
printed form of the ISDA Credit Support Annex which form
part of this Agreement.
(g) Swap Transaction: Any reference to a:
(i) "Swap Transaction" in the 1991 ISDA Definitions is deemed to
be a reference to a "Transaction" for the purpose of
interpreting this Agreement or any Confirmation; and
(ii) "Transaction" in this Agreement or any Confirmation is
deemed to be a reference to a "Swap Transaction" for the
purpose of interpreting the 1991 ISDA Definitions.
(h) Incorporated Definitions and other Transaction Documents and
provisions: Where in this Agreement a word or expression is defined
by reference to its meaning in another Transaction Document or there
is a reference to another Transaction Document or to a provision of
another Transaction Document, any amendment to the meaning of that
word or expression or to that other Transaction Document or provision
(as the case may be) will be of no effect for the purposes of this
Agreement unless and until the amendment is consented to by the
parties to this Agreement.
(12) Limitation of Liability: Insert the following as Sections 15 and 16, after
Section 14:
"15. Party B's Limitation of Liability
(a) (Limitation on Party B's liability): Party B enters into
this Agreement only in its capacity as trustee of the
relevant Series Trust and in no other
17
capacity. A liability incurred by Party B acting in its
capacity as trustee of the relevant Series Trust arising
under or in connection with this Agreement is limited to and
can be enforced against Party B only to the extent to which
it can be satisfied out of the Assets of that Series Trust
out of which Party B is actually indemnified for the
liability. This limitation of Party B's liability applies
despite any other provision of this Agreement (other than
Section 15(c)) and extends to all liabilities and
obligations of Party B in any way connected with any
representation, warranty, conduct, omission, agreement or
transaction related to this Agreement.
(b) (Claims against Party B): The parties other than Party B
may not ▇▇▇ Party B in respect of liabilities incurred by
Party B acting in its capacity as trustee of a Series Trust
in any other capacity other than as trustee of that Series
Trust, including seeking the appointment of a receiver
(except in relation to Assets of that Series Trust), or a
liquidator, or an administrator, or any similar person to
Party B or prove in any liquidation, administration or
similar arrangements of or affecting Party B (except in
relation to the Assets of that Series Trust).
(c) (Breach of trust): The provisions of this Section 15 will
not apply to any obligation or liability of Party B to the
extent that it is not satisfied because under the Master
Trust Deed, the corresponding Series Supplement or any other
corresponding Transaction Document or by operation of law
there is a reduction in the extent of Party B's
indemnification out of the Assets of the relevant Series
Trust, as a result of Party B's fraud, negligence or wilful
default.
(d) (Acts or omissions): It is acknowledged that the Relevant
Parties are responsible under the corresponding Transaction
Documents for performing a variety of obligations relating
to the relevant Series Trust. No act or omission of Party B
(including any related failure to satisfy its obligations or
any breach of representation or warranty under this
Agreement) will be considered fraudulent, negligent or a
wilful default of Party B for the purpose of paragraph (c)
of this Section 15 to the extent to which the act or
omission was caused or contributed to by any failure by any
such Relevant Person or any other person appointed by Party
B under such a Transaction Document (other than a person
whose acts or omissions Party B is liable for in accordance
with any such Transaction Document) to fulfil its
obligations relating to the relevant Series Trust or by any
other act or omission of the Manager or the Servicer or any
other such person.
(e) (No obligation):
Party B is not obliged to enter into any commitment or
obligation under this Agreement or any Transaction Document
(including incur any further liability) unless Party B's
liability is limited in a manner which is consistent with
this Section 15 or otherwise
in a manner satisfactory to Party B in its absolute discretion."16.
Segregation
Party B will enter into each Transaction as trustee of a Series
Trust. Each Confirmation in relation to a Transaction must specify
the name of the Series Trust to which the Transaction relates.
Notwithstanding anything else in this Agreement, but without limiting
the generality of Section 15, the provisions of this Agreement
(including, without limitation, the Credit Support Annex) shall have
effect severally in respect of each Series Trust and shall be
enforceable by or against Party B in its
18
capacity as trustee of the relevant Series Trust as though a separate
Agreement applied between Party A, Party B (in its capacity as
trustee of the Series Trust specified in the relevant Confirmations),
the Manager and the Standby Swap Provider for each of Party B's said
several capacities, to the intent that (inter alia):
(a) (References to Party B): unless the context indicates a
contrary intention, each reference to "Party B" in this
Agreement shall be construed as a several reference to Party
B in its respective capacities as trustee of each Series
Trust;
(b) (Separate Agreements): this Master Agreement including,
without limitation, this Schedule and the Credit Support
Document together with each Confirmation relating to a
particular Series Trust will form a single separate
agreement between Party A, the Manager, the Standby Swap
Provider and Party B in its capacity as trustee of that
Series Trust and references to the respective obligations
(including references to payment obligations generally and
in the context of provisions for the netting of payments and
the calculation of amounts due on early termination) of
Party A, the Manager, the Standby Swap Provider or Party B
shall be construed accordingly as a several reference to
each mutual set of obligations arising under each such
separate agreement between Party A, the Manager, the Standby
Swap Provider and Party B in its several capacity as trustee
of the relevant Series Trust;
(c) (Representations): representations made and agreements
entered by the parties under this Agreement are made and
entered severally by Party B in its respective capacities as
trustee of each Series Trust and in respect of the relevant
Series Trust and may be enforced by Party B against Party A,
the Manager or the Standby Swap Provider severally in Party
B's said several capacities (and by Party A, the Manager or
the Standby Swap Provider against Party B in Party B's said
several capacities);
(d) (Termination): rights of termination, and obligations and
entitlements consequent upon termination, only accrue to
Party A against Party B severally in Party B's respective
capacities as trustee of each Series Trust, and only accrue
to Party B against Party A severally in Party B's said
several capacities;
(e) (Events of Default and Termination Events): without limiting
Section 15, the occurrence of an Event of Default or
Termination Event in respect of one Series Trust shall not
in itself constitute an Event of Default or Termination
Event in respect of any other Series Trust; and
(f) (Definitions):
(i) the term "Series Trust":
(A) in this Section 16, means each Series Trust
(as defined in the Master Trust Deed)
specified or to be specified, as the context
requires, as the relevant Series Trust in the
Confirmation for a Transaction; and
(B) elsewhere in this Agreement, means each such
Series Trust severally in accordance with the
preceding provisions of this Section 16;
(ii) the term "Transaction":
19
(A) in this Section 16, means each Transaction
governed by this Agreement; and
(B) elsewhere in this Agreement, means each such
Transaction entered into by the trustee as
Trustee of the relevant Series Trust;
(iii) the term "Agreement":
(A) in this Section 16, means this Master
Agreement, including, without limitation, this
Schedule and the Credit Support Annex, and all
Confirmations governed by this Master
Agreement; and
(B) elsewhere, means the separate agreement
referred to in Section 16(b) in respect of
each particular Series Trust;
(iv) the terms "Distribution Date", "Relevant Calculation
Amount", "Relevant Note Trustee", "Relevant Notes",
"Relevant Noteholders", "Scheduled Maturity Date",
"Security Trust Deed" and "Series Supplement" in this
Agreement to the extent that it applies in relation
to a Series Trust have the respective meanings given
to them in the Confirmations for the Transactions of
that Series Trust."
(13) Further Assurances: Each party will, upon request by the other party (the
"requesting party") at the expense of the requesting party, perform all
such acts and execute all such agreements, assurances and other documents
and instruments as the requesting party reasonably requires (and, in the
case of Party B, are within the powers granted to Party B under the Master
Trust Deed) to assure and confirm the rights and powers afforded, created
or intended to be afforded or created, under or in relation to this
Agreement and each Transaction or other dealing which occurs under or is
contemplated by it.
(14) Procedures for Entering into Transactions
(a) With respect to each Transaction entered into pursuant to this
Agreement and for the purposes of Section 9(e)(ii), Party A will, by
or promptly after the relevant Trade Date, send Party B, the Standby
Swap Provider and the Manager a Confirmation substantially in the
form set out in Annexure 1 (or in such other form as may be agreed
between Party A, Party B, the Standby Swap Provider and the Manager),
and Party B, the Standby Swap Provider and the Manager must promptly
then confirm the accuracy of and sign and return, or request the
correction of, such Confirmation; and
(b) Party B will enter into each Transaction in its capacity as trustee
of the Series Trust.
(15) Authorised Officer: Each party will be entitled to assume, in the absence
of any knowledge to the contrary, that any Confirmation, notice or other
written communication, which is issued in respect of this Agreement and
which is purported to be signed on behalf of another party by a person
specified in the certificate provided by that other party under Part 3(b),
is authorised by that other party.
(16) Recorded Conversations: Each party:
(a) consents to the electronic recording of its telephone conversations
with the other party (or any of its associated persons) with or
without the use of an automatic tone warning device;
20
(b) will provide transcripts of such recordings (if any) upon reasonable
request by the other party (at the reasonable cost of the party
requesting); and
(c) acknowledges that neither is obligated to maintain copies of such
recordings and transcripts for the benefit of the other party.
(17) Replacement Currency Swap Agreement:
(a) If any Transaction under this Agreement is terminated prior to the
day upon which the Relevant Notes are redeemed in full, Party B may,
at the direction of the Manager, enter into one or more currency
swaps which replace that Transaction (collectively a "Replacement
Currency Swap") provided that:
(i) the Rating Agencies confirm in writing that the entry into
the Replacement Currency Swap by Party B does not result in
a reduction, qualification or withdrawal of the credit
ratings then assigned by them to the Relevant Notes; and
(ii) the liability of Party B under the Replacement Currency Swap
is limited to at least the same extent that its liability is
limited under that Transaction.
(b) If Party B enters into a Replacement Currency Swap pursuant to
paragraph (a) and a Settlement Amount is payable by Party B to Party
A upon termination of the Transaction referred to in Part 5(17)(a),
Party B must direct the Replacement Currency Swap provider to pay any
upfront premium to enter into the Replacement Currency Swap due to
Party B directly to Party A in satisfaction of and to the extent of
Party B's obligation to pay the Settlement Amount to Party A, and to
the extent such premium is not greater than or equal to the
Settlement Amount, the balance may be satisfied by Party B as an
Expense.
(c) If Party B enters into a Replacement Currency Swap pursuant to
paragraph (a) and a Settlement Amount is payable by Party A to Party
B upon termination of the Transaction referred to in Part 5(17)(a),
Party B may direct Party A to pay that amount to the Replacement
Currency Swap provider in satisfaction of or towards and to the
extent of Party B's obligation (if any) to pay an upfront premium to
the Replacement Currency Swap provider to enter into the Replacement
Currency Swap.
(d) The obligations of Party B (and the rights of Party A) under this
Part 5(17) will survive the termination of this Agreement.
(18) Knowledge or Awareness: Subject to Section 12(a), each party will only be
considered to have knowledge or awareness of, or notice of, a thing or
grounds to believe anything by virtue of the officers of that party or any
Related Body Corporate of that party which have the day to day
responsibility for the administration or management of that party's (or a
Related Body Corporate of that party's) obligations in relation to the
Series Trust or the Transactions entered into under this Agreement having
actual knowledge, actual awareness or actual notice of that thing, or
grounds or reason to believe that thing (and similar references will be
interpreted in this way).
(19) Restrictions on Party B's Rights: Party B must at all times act in
accordance with the instructions of the Manager in relation to this
Agreement.
(20) Amendment to this Agreement: None of Party A, Party B, the Standby Swap
Provider or the Manager may amend this Agreement unless the Rating
Agencies have confirmed in writing that the proposed amendment will not
result in a reduction, qualification or withdrawal of the credit ratings
then assigned by them to the Relevant Notes.
21
(21) Appointment of Manager: Party B hereby exclusively appoints the Manager as
its attorney to act on Party B's behalf and exercise all rights and powers
of Party B with respect to this Agreement. Without limiting the
generality of the foregoing, the Manager may issue and receive on behalf
of Party B all notices, certificates and other communications to or by
Party A under this Agreement until such time as Party B serves written
notice on Party A of the revocation of the Manager's authority to act on
behalf of Party B in accordance with this Part 5(21) of the Schedule.
(22) Ratings Downgrade:
(a) (Downgrade): If, as a result of the reduction or withdrawal of the
credit rating of Party A or the Standby Swap Provider a Joint Rating
is less than the relevant Prescribed Rating, Party A must by the
expiry of the Prescribed Rating Period in relation to the credit
ratings assigned by the Rating Agencies to Party A and the Standby
Swap Provider at that time (or such greater period as is agreed to in
writing by each relevant Rating Agency), at its cost alone and at its
election:
(i) provided that the short term Joint Rating by S&P is greater
than or equal to A-1 or the long term Joint Rating by S&P is
greater than or equal to A- and the long term Joint Rating
by Fitch IBCA is greater than or equal to A-, lodge
collateral in accordance with the Credit Support Annex in an
amount equal to the Collateral Amount as defined in Part
5(22)(b); or
(ii) enter into, and procure that the Standby Swap Provider
enters into, an agreement novating Party A's and/or the
Standby Swap Providers' rights and obligations under this
Agreement and the Class A-1 Currency Swap to a replacement
counterparty acceptable to the Manager and the Standby Swap
Provider and which the Rating Agencies confirm in writing
will not result in a reduction, qualification or withdrawal
of the credit ratings then assigned by them to the Relevant
Notes; or
(iii) enter into, or procure that the Standby Swap Provider enters
into, such other arrangements in respect of each Transaction
which the Rating Agencies confirm in writing will not result
in a reduction, qualification or withdrawal of the credit
ratings then assigned by them to the Relevant Notes.
Notwithstanding that Party A has elected to satisfy its obligations
pursuant to this Part 5(22)(a) in a particular manner, it may
subsequently and from time to time vary the manner in which it
satisfies its obligations pursuant to this Part 5(22)(a) (but will
not be entitled to any additional grace period in relation to such a
variation).
(b) (Collateral Amount): For the purpose of this Part 5(23) the
Collateral Amount will be an amount equal to the greater of the
following:
(i) zero;
(ii) CCR; and
(iii) an amount acceptable to ▇▇▇▇▇'▇ and Fitch and sufficient to
maintain the credit rating assigned to the Relevant Notes by
▇▇▇▇▇'▇ and Fitch immediately prior to the review of the
Joint Rating.
Where:
CCR = CR x 1.030
CR = MTM + VB
22
MTM means the ▇▇▇▇-to-market value (whether positive or negative) of
each Transaction determined in accordance with Part 5(22)(c) no
earlier than 3 Business Days prior to the date that the Collateral
Amount is lodged.
VB means the volatility buffer, being the value calculated by
multiplying the Relevant Calculation Amount as at the most recent
Distribution Date by the relevant percentage obtained from the
following table:
----------------------------------------------------------------------------------------------------------
Party A's and the Where the period Where the period between Where the period between the
Standby Swap between the date of the date of recalculation date of recalculation and the
Provider's jointly recalculation and the and the Scheduled Scheduled Maturity Date is
supported long Scheduled Maturity Maturity Date is greater greater than 10 years
term credit Date is less than or than 5 years and less than
rating by S&P equal to 5 years or equal to 10 years
----------------------------------------------------------------------------------------------------------
A+ 1.05 1.75 3.0
----------------------------------------------------------------------------------------------------------
A 1.35 2.45 4.5
----------------------------------------------------------------------------------------------------------
A- 1.5 3.15 6
----------------------------------------------------------------------------------------------------------
(c) (▇▇▇▇ to Market Value): Party A must calculate the ▇▇▇▇-to-market
value of each Transaction by obtaining 2 bids from counterparties
with the Prescribed Ratings willing to provide each Transaction in
the absence of Party A. The ▇▇▇▇-to-market value may be a positive or
a negative amount. A bid has a negative value if the payment to be
made is from the counterparty to Party A and has a positive value if
the payment to be made is from Party A to the counterparty. The ▇▇▇▇-
to-market value is the higher of the bids (on the basis that any bid
of a positive value is higher than any bid of a negative value).
(d) (Recalculation): Party A must recalculate the Collateral Amount
(including the CCR and the ▇▇▇▇-to-market value) on each Valuation
Date. If:
(i) the Value on such Valuation Date of all Posted Credit
Support held by the Secured Party is less than the
recalculated Collateral Amount, the difference is the
Delivery Amount in relation to that Valuation Date; or
(ii) the Value on such Valuation Date of all Posted Credit
Support held by the Secured Party is greater than the
recalculated Collateral Amount, the difference is the Return
Amount in relation to that Valuation Date.
(e) (Definitions): For the purposes of this Part 5(22) "Delivery Amount",
"Posted Credit Support", "Secured Party", "Value" and "Valuation
Date" have the same meaning as in the Credit Support Annex.
(23) Transfer: Notwithstanding the provisions of ▇▇▇▇▇▇▇ ▇, ▇▇▇▇ as Standby
Swap Provider or (on and from the Novation Date) as Party A may transfer
all its rights powers and privileges and all its unperformed and future
obligations under this Agreement and each Transaction to any subsidiary of
ML & Co ("Transferee") by delivering to Party B, the Manager and (where
given prior to the Novation Date) CBA as Party A a notice expressed to be
given under this provision signed by both MLIA, as Standby Swap Provider
or as Party A, as applicable, and the Transferee and an executed
guarantee of the Transferee's transferred obligations in the form of
Annexure 2. Upon delivery of those documents to Party B:
(a) (Party A's rights terminate): MLIA's rights powers privileges and
obligations as Standby Swap Provider or as Party A, as applicable,
under this Agreement and each Transaction terminate;
(b) (Transfer and Assumption): MLIA will be taken to have transferred its
rights powers and privileges under this Agreement and each
Transaction to the Transferee and the Transferee will be taken to
have assumed obligations equivalent to those of the Standby Swap
Provider or Party A, as applicable, had under this Agreement and
23
each Transaction;
(c) (Release): Party B will be taken to have released MLIA as Standby
Swap Provider or as Party A, as applicable, from all its unperformed
and future obligations under this Agreement and each Transaction; and
(d) (Documents): this Agreement and the Confirmation relating to each
Transaction shall be construed as if the Transferee was a party to it
in place of the Standby Swap Provider or Party A, as applicable.
A Transferee may utilise this provision as Standby Swap Provider or Party
A, as applicable. A transfer under this Part 5(23) will be of no force or
effect until each Rating Agency confirms in writing that such transfer
will not result in a reduction, qualification or withdrawal of the credit
ratings then assigned by them to the Relevant Notes.
(24) Standby Swap Provider:
(a) (Commitment): Notwithstanding any other provision in this Agreement
to the contrary, if MLIA as Party A fails to:
(i) make, when due, any payment required to be made by it to
Party B under a Transaction; or
(ii) comply with any obligation under Part 5(22) within the
required period,
then:
(iii) as soon as practicable following such failure but, in
relation to a failure to pay under a Transaction, in any
event no later than 11.00 am (New York time) on the due date
for such payment or, in relation to a failure to comply with
an obligation under Part 5(22), no later than the Business
Day following the due date for compliance with such
obligation, Party B must notify CBA as Party A and the
Standby Swap Provider in writing of such failure and:
(A) the amount of the defaulted payment and the basis of
calculation of the defaulted payment; or
(B) details of the failure to comply with the obligation
under Part 5(22),
as the case may be; and
(iv) as soon as reasonably practicable after its receipt of such
notice (and in any event, in relation to a failure to pay
under a Transaction, no later than 1.30 pm (New York time)
on the due date for such payment, and, in relation to a
failure to comply with an obligation under Part 5(22), no
later than 3 Business Days after the failure to comply with
such obligation, provided, in each case, that notice has
been given by Party B by the required times in accordance
with Part 5(24)(a)(iii)) the Standby Swap Provider must:
(A) in relation to a failure to pay under a
Transaction, pay to Party B the amount then owing
by CBA as Party A to Party B under that
Transaction by depositing such amount into the
Collections Account in cleared funds; and
24
(B) in relation to a failure to comply with an
obligation under Part 5(22), satisfy the
obligations of CBA as Party A under Part 5(22).
(b) (Reimbursement): If on any day the Standby Swap Provider:
(i) makes a payment pursuant to Part 5(24)(a)(iv)(A), CBA as
Party A must by 2.00 pm (New York time) on the next
following Business Day (or such other time as the Standby
Swap Provider may agree in writing) pay to the Standby Swap
Provider an amount equal to that payment by depositing such
amount into the account which the Standby Swap Provider
nominates for this purpose in cleared funds; or
(ii) satisfies the obligations of CBA as Party A pursuant to Part
5(24)(a)(iv)(B), CBA as Party A must:
(A) within 3 Business Days, fulfil its obligations
under Part 5(220) such that any collateral lodged
by the Standby Swap Provider pursuant to Part
5(22)(a)(i) or any other arrangement made by the
Standby Swap Provider pursuant to Part
5(22)(a)(iii) is returned to the Standby Swap
Provider or will cease (but CBA as Party A will
have no obligations to the Standby Swap Provider
under this Part 5(24)(b)(ii)(A) in relation to any
novation pursuant to Part 5(22)(a)(ii)); and
(B) upon demand by the Standby Swap Provider,
indemnify the Standby Swap Provider from and
against any cost or liability incurred by the
Standby Swap Provider in satisfying those
obligations.
(c) (Novation): If:
(i) CBA as Party A defaults in its payment obligations under
Part 5(24)(b)(i) or (b)(ii)(B) for reasons other than solely
a technical, computer or similar error outside the control
of Party A and such default is not remedied on or before one
Business Day after such failure;
(ii) CBA as Party A fails to fulfil its obligations under Part
5(24)(b)(ii)(A); or
(iii) prior to the Novation Date, an Inconvertibility Event occurs
in respect of which CBA, as Party A, gives written notice to
the Standby Swap Provider, Party B and the Manager prior to
the Novation Date (as that term is defined in this
Agreement),
then:
(iv) CBA's rights, powers, privileges and obligations as Party A
under this Agreement and each Transaction terminate other
than its rights, powers, privileges and obligations pursuant
to Part 5(24)(d) and Paragraph 13(m)(vii) of the Credit
Support Annex;
(v) subject to Part 5(24)(c)(vii), CBA will be taken to have
transferred its rights powers and privileges as Party A
under this Agreement and each Transaction to the Standby
Swap Provider and the Standby Swap Provider will be taken to
have assumed obligations equivalent to those that CBA as
Party A had under this Agreement and each Transaction;
25
(vi) Party B and the Standby Swap Provider will be taken to have
released CBA as Party A from all its unperformed and future
obligations under this Agreement and each Transaction other
than its present and future obligations pursuant to Part
5(24)(d);
(vii) this Agreement and the Confirmation relating to each
Transaction shall be construed as if the Standby Swap
Provider was a party to it in place of Party A except that:
(A) references to "CBA as Party A" will not apply to the
Standby Swap Provider as Party A;
(B) references to any jointly supported credit rating of
Party A and the Standby Swap Provider will be deemed
to be references to the relevant credit rating of the
Standby Swap Provider;
(C) without limiting Part 5(24)(c)(vii)(A), Part 5(23),
this Part 5(24) and Paragraph 13(m)(vii) of the
Credit Support Annex will not apply to the Standby
Swap Provider as Party A;
(D) the Standby Swap Provider must (if it has not already
done so) satisfy the obligations of Party A under
Part 5(22)(a) within 10 Business Days of the
Novation Date on the basis that any collateral lodged
by CBA as Party A or any other arrangements made by
CBA as Party A pursuant to Part 5(22)(a)(iii) will be
returned to CBA as Party A or will cease (but such
collateral will only be returned and such
arrangements will only cease upon compliance by the
Standby Swap Provider with its obligations under this
Part 5(24)(c)(vii)(D) and otherwise, where
applicable, in accordance with Paragraph 13(m)(vii)
of the Credit Support Annex or the terms of such
arrangements).
(d) (Termination Payment): Following novation under Part 5(24)(c) CBA as
Party A must pay the Standby Swap Provider or the Standby Swap
Provider must pay CBA as Party A an amount (the "Novation Settlement
Amount") being:
(i) in the case of payment by CBA as Party A to the Standby Swap
Provider, an amount equal to the amount (if any) that would
be payable by Party A to Party B; and
(ii) in the case of payment by the Standby Swap Provider to CBA
as Party A, an amount equal to the amount (if any) that
would be payable by Party B to Party A,
if each Transaction had been terminated, calculated and payable in
accordance with Sections 6(d) and (e) on the basis that:
(i) the Novation Date is the Early Termination Date and the
Novation Settlement Amount is due and payable on the day
that notice of the amount payable is effective except in the
case of novation following an Inconvertibility Event
(whether or not a failure referred to in Part 5(24)(a) has
occurred) where the Novation Settlement Amount is due and
payable on the day which is 2 Business Days after the day on
which notice of the amount payable is effective;
(ii) in the case of:
26
(A) novation following an Inconvertibility Event (whether
or not a failure referred to in Part 5(24)(a) has
occurred), the Early Termination Date has resulted
from a Termination Event and there are two Affected
Parties;
(B) otherwise, the Early Termination Date has resulted
from an Event of Default in respect of which Party A
is the Defaulting Party;
(iii) all calculations and determinations which would have been
done by Party B are done by the Standby Swap Provider and all
calculations and determinations that would have been done by
Party A are done by CBA;
(iv) a reference to Unpaid Amounts owing to Party B is a reference
to such amounts payable by Party A to the Standby Swap
Provider pursuant to Part 5(24)(b) and (e) and there are no
Unpaid Amounts owing to Party A;
(v) without limiting the foregoing, for the purposes of the
definition of "Market Quotation" in Section 14 each Reference
Market-maker would be required, upon entering into a
Replacement Transaction, to fulfil the obligations of Party A
under Part 5(22)(a) and to comply with Section 2(d) as
amended by Part (5)(1)(e); and
(vi) the Termination Currency is U.S. Dollars.
(e) (Default Interest): If CBA as Party A defaults in the performance of
any payment obligations under Part 5(24)(b) or Part 5(24)(d), it must
pay interest (before as well as after judgment) on the overdue amount
to the Standby Swap Provider on demand in the same currency as such
overdue amount, for the period from (and including) the original due
date for payment to (but excluding) the date of actual payment, at
the Default Rate. Such interest will be calculated on the basis of
daily compounding and the actual number of days elapsed.
(f) (Irrevocable Notice): If the Standby Swap Provider satisfies the
obligations of CBA as Party A under Part 5(24)(a)(iv)(B) by lodging
collateral on behalf of CBA as Party A pursuant to Part 5(22)(a), CBA
as Party A must promptly provide an irrevocable notice to Party B
(copied to the Standby Swap Provider) directing Party B that any such
collateral, and any Distribution or Interest Amount (as those terms
are defined in the Credit Support Annex) with respect to such
collateral, is to be returned or paid to the Standby Swap Provider
and not to CBA as Party A.
27
Annexure 1
FORM OF CONFIRMATION FOR
[NAME OF SERIES TRUST]
[Letterhead of Party A]
[DATE]
To: Perpetual Trustee Company Limited Securitisation Advisory Services Pty. Limited
as trustee of the Series Trust ▇▇▇▇▇ ▇
▇▇▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Attention: Manager, Securitisation Attention: Manager, Securitisation
Services
▇▇▇▇▇▇▇ ▇▇▇▇▇ International (Australia)
Limited
▇▇▇▇▇ ▇▇
▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Attention: Swaps Group
CONFIRMATION - [NAME OF TRANSACTION]
The purpose of this letter is to confirm the terms and conditions of the
Transaction entered into between us on the terms specified below (the
"Transaction"). This letter constitutes a "Confirmation" as referred to in the
Master Agreement specified below.
This Confirmation is entered into by Perpetual Trustee Company Limited, ACN 000
001 007 as trustee of the Series [ ] Medallion Trust (the "Series Trust").
This Confirmation supplements, forms part of, and is subject to, the 1992 ISDA
Master Agreement dated as of [ ], as amended, novated or
supplemented from time to time (the "Agreement"), between Commonwealth Bank of
Australia, ACN 123 123 124 ("Party A"), Perpetual Trustee Company Limited, ACN
000 001 007 as trustee of, inter alia, the Series Trust ("Party B"),
Securitisation Advisory Services Pty. Limited, ACN 064 133 946 (the "Manager")
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ International (Australia) Limited, ACN 002 892 846 (the
"Standby Swap Provider"). All provisions contained in the Agreement govern this
Confirmation except as expressly modified below.
This Confirmation incorporates the Definitions Schedule which forms part of, and
is subject to, this Confirmation.
The terms of the particular Transaction to which this Confirmation relates are
specified below:
1. Our Reference: [ ]
2. Trade Date: [ ]
28
3. Effective Date: Issue Date in respect of the Relevant Notes
4. Termination Date: The earlier of:
(a) the date that the Notes have been redeemed in
full in accordance with the Relevant Note
Conditions; and
(b) the Scheduled Maturity Date.
5. Floating Amounts
5.1 Floating Amounts Payable
by Party A (subject to
Paragraph 9 of this
Confirmation):
Floating Rate Payer: Party A
Calculation Amount: For each Floating Rate Payer Payment Date, one half
of the aggregate Invested Amount of the Relevant
Notes as at the first day of the Calculation Period
ending on but excluding that Floating Rate Payer
Payment Date
Floating Rate Payer Each Distribution Date during the period commencing
Payment Dates: on and including [ ] and ending on and including
the Termination Date, subject to adjustment in
accordance with the Following Business Day
Convention
Floating Rate Option: USD-LIBOR-BBA (except that references to "London
Banking Days" in section 7.1(ag)(ii) and (iv) of
the 1998 Supplement to the 1991 ISDA Definitions
will be replaced with references to "Banking Days"
as that expression is defined in the Note
Conditions)
Designated Maturity: [ ] months (except that Linear Interpolation using
[ ] and [ ] months will apply in respect of the
first Calculation Period)
Spread: In respect of:
(a) Floating Rate Payer Payment Dates on or prior
to [ ] (or if that day is not a Business Day,
the next following Business Day), [ ]; and
(b) Floating Rate Payer Payment Dates after [ ]
(or if that day is not a Business Day, the
next following Business Day), [ ].
Floating Rate Day Count Actual/360
Fraction:
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
Class A-1 Unpaid Coupon On each Floating Rate Payer Payment Date,
Party A
29
Amount: will pay to Party B an amount calculated as
follows:
$US UC = AUC x LIBOR x $SUS Exchange Rate
-----
BBSW
where:
$US UC = the amount to be paid by Party A;
$A UC = the A$ Class A-1 Unpaid Interest
Payment in relation to the
Distribution Date which is the same
day as that Floating Rate Payer
Payment Date;
LIBOR = the Floating Rate Option under this
paragraph 5.1 in respect of the Reset
Date which is the same day as that
Floating Rate Payer Payment Date;
BBSW = the Floating Rate Option under
paragraph 5.2 in respect of the Reset
Date which is the same day as that
Floating Rate Payer Payment Date.
5.2 Floating Amounts Payable
by Party B (subject to
paragraph 9 of this
Confirmation):
Floating Rate Payer: Party B
Calculation Amount: For each Floating Rate Payer Payment
Date, the A$ Equivalent of one half
of the aggregate Invested Amount of
the Relevant Notes as at the first
day of the Calculation Period ending
on but excluding that Floating Rate
Payer Payment Date
Floating Rate Payer Each Distribution Date during the
Payment Dates: period commencing on and including
[ ] and ending on and including the
Termination Date, subject to
adjustment in accordance with the
Following Business Day Convention
Floating Rate Option: AUD-BBR-BBSW
Designated Maturity: [ ] months (except that Linear
Interpolation using [ ] and [ ]
months will apply in respect of the
first Calculation Period)
Spread: In respect of:
(a) Floating Rate Payer Payment
Dates on or prior to [ ] (or if
that day is not a Business Day,
the next following Business
Day), [ ]; and
(b) Floating Rate Payer Payment
Dates after [ ] (or if that day
is not a Business Day, the next
following Business Day), [ ].
30
Floating Rate Day Count Fraction: Actual/365 (Fixed)
Reset Dates The first day of each Calculation
Compounding: Period Inapplicable
A$ Class A-1 Unpaid Interest On each Floating Rate Payer Payment
Amount: Date Party B will pay to Party A the
A$ Class A-1Unpaid Interest Payment
in relation to the Distribution Date
which is the same day as that
Floating Rate Payer Payment Date.
6. Exchanges
6.1 Initial Exchange:
Initial Exchange Date: Issue Date
Party A Initial Exchange Amount: The A$ Equivalent of the Party B
Initial Exchange Amount, being A$[ ]
Party B Initial Exchange Amount: One half of the Initial Invested
Amount of the Relevant Notes on the
Issue Date, being US$[ ]
Notwithstanding Section 2(a)(ii) of
the Agreement, Party A must pay the
Party A Initial Exchange Amount to
Party B by 4.00pm (Sydney time) on
the Initial Exchange Date and Party B
must pay Party A the Party B Initial
Exchange Amount by 4.00pm (New York
time) on the Initial Exchange Date.
6.2 Instalment Exchange:
Instalment Exchange Date: Each Distribution Date (other than
the Final Exchange Date)
Party A Instalment Exchange Amount: In respect of an Instalment Exchange
Date means the US$ Equivalent of one
half of the A$ Class A-1 Principal
Amount in relation to the
Distribution Date occurring on that
Instalment Exchange Date
Party B Instalment Exchange Amount: In respect of an Instalment Exchange
Date means one half of the A$ Class A
1 Principal Amount in relation to the
Distribution Date occurring on that
Instalment Exchange Date
6.3 Final Exchange:
Final Exchange Date: Termination Date
Party A Final Exchange Amount: The US$ Equivalent of one half of the
A$ Class A-1 Principal Amount in
relation to the Distribution Date
which is the Final Exchange Date
31
Party B Final Exchange Amount: One half of the A$ Class A-1
Principal Amount in relation to the
Distribution Date which is the Final
Exchange Date
7. Exchange Rates:
For the purpose of the definitions
of "A$ Equivalent" and "US$
Equivalent":
US$ Exchange Rate: [ ]
A$ Exchange Rate: [ ]
8. Account Details:
8.1 Payments to Party A
Account for payment in US$ The account notified in writing by
Part A to Party B in accordance with
Part 5(3)(ii) of the Schedule to the
Agreement
Account for payment in A$ The account notified in writing by
Party A to Party B in accordance with
Part 5(3)(i) of the Schedule to the
Agreement
8.2 Payments to Party B
Account for payments in US$: The account notified in writing by
the Principal Paying Agent to Party
A in accordance with Part 5(2)(ii)
of the Schedule to the Agreement
Account for payments in A$: The account notified in writing by
Party B to Party A in accordance
with Part 5(2)(i) of the Schedule to
the Agreement
9. Notifications to Party A On or before the Determination Time
in respect of each Distribution Date
the Manager must notify Party A and
the Standby Swap Provider in writing
of:
(a) the A$ Class A-1 Principal
Amount which the Manager has
directed Party B to pay to
Party A on that Distribution
Date pursuant to clause
10.5(b)(i) of the Series
Supplement;
(b) the A$ Class A-1 Interest
Payment in relation to that
Distribution Date;
(c) the amounts (if any) allocated
to the Class A-1 Notes in
respect of any Principal
Charge-off or Principal Charge
-off Reimbursement on the
immediately preceding
Determination Date in
accordance with Conditions 7.9
and 7.10 of the Note
Conditions; and
32
(d) the A$ Class A-1 Unpaid
Interest Payment (if any) in
relation to that Distribution
Date.
10. Offices: The Office of CBA as Party A for
each Transaction is Sydney.
The Office of MLIA (on or from the
Novation Date) as Party A is Sydney.
The Office of Party B for each
Transaction is Sydney.
Please confirm that the above correctly sets out the terms of our agreement in
respect of each Transaction to which this Confirmation relates by signing and
returning this Confirmation to us by facsimile today.
Executed documents will follow by mail.
Yours sincerely
SIGNED for and on behalf of
COMMONWEALTH BANK
OF AUSTRALIA, ACN 123 123 124
By:
(Authorised Officer)
Name:
Title:
Confirmed as at the date first Confirmed as at the date first
written above: written above:
SIGNED for and on behalf of SIGNED for and on behalf of
PERPETUAL TRUSTEE SECURITISATION ADVISORY SERVICES PTY.
COMPANY LIMITED, ACN 000 001 007 LIMITED, ACN 064 133 946
as trustee of the Series
2000-2G Medallion Trust
By: By:
(Authorised Officer) (Authorised Officer )
Name: Name:
Title: Title:
SIGNED for and on behalf of
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL (AUSTRALIA)
LIMITED, ABN 31 002 892 846
By:
(Authorised Officer)
Name:
Title:
33
Definitions Schedule
In this Confirmation and in the Agreement to the extent that it relates to the
Series Trust, unless the context otherwise requires:
"A$ Class A-1 Unpaid Interest Payment" means in relation to a Distribution Date
the amount available to be allocated towards payment to Party A in respect of A$
Class A-1 Unpaid Interest Amounts on that Distribution Date in accordance with
clause 10.2(k)(i) of the Series Supplement determined on the basis that all
amounts allocated towards payment of A$ Class A-1 Interest Amounts and A$ Class
A-1 Unpaid Interest Amounts pursuant to clause 10.2(k)(i) of the Series
Supplement are allocated first towards payment of A$ Class A-1 Interest Amounts
and then, once the A$ Class A-1 Interest Amounts are paid in full, towards
payment of A$ Class A-1 Unpaid Interest Amounts.
"Class A-1 Note Trust Deed" means the Class A-1 Note Trust Deed dated on or
about the date of this Confirmation between Party B, the Manager and the
Relevant Note Trustee.
"Determination Time" in relation to a Distribution Date means on or about
11.00am Sydney time 1 Business Day prior to that Distribution Date.
"Distribution Date" has the same meaning as in the Series Supplement.
"Note Conditions" means the terms and conditions of the Relevant Notes annexed
to the Relevant Notes.
"Relevant Calculation Amount" means the Calculation Amount referred to in
paragraph |5.1 of this Confirmation.
"Relevant Notes" means the Class A-1 Notes issued by the Trustee under the Class
A-1 Note Trust Deed.
"Relevant Noteholders" means the Class A-1 Noteholders as that term is defined
in the Class A-1 Note Trust Deed.
"Relevant Note Trustee" means The Bank of New York, New York Branch or, if the
Bank of New York is removed or retires as the trustee for the Class A-1
Noteholders, any person appointed from time to time in its place in accordance
with the Class A-1 Note Trust Deed.
"Scheduled Maturity Date" has the same meaning as in the Series Supplement.
"Security Trust Deed" means the Security Trust Deed dated on or about the date
of this Confirmation between Party B, the Manager, the Relevant Note Trustee and
P.T. Limited, ACN 004 454 666.
"Series Supplement" means the Series Supplement dated on or about the date of
this Confirmation between CBA, Party B and the Manager.
Terms defined in the Note Conditions have the same meaning in this Confirmation
unless otherwise defined in this Confirmation.
34
Annexure 2
FORM OF GUARANTEE OF ▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., INC.
FOR VALUE RECEIVED, receipt of which is hereby acknowledged, ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
CO., INC., a corporation duly organized and existing under the laws of the State
of Delaware ("ML & Co."), hereby unconditionally guarantees to:
(a) Perpetual Trustee Company Limited, ACN 000 001 007 (the "Company") as
trustee of the Series [ ] Medallion Trust (the "Series Trust"), the due and
punctual payment of any and all amounts payable by ▇▇▇▇▇▇▇ ▇▇▇▇▇
International (Australia) Limited, ABN 31 002 892 846, a company
incorporated in New South Wales, Australia ("MLIA") to the Company as
trustee of the Series Trust under the terms of the ISDA Master Agreement
(Currency Swap Agreement) between the Company, Securitisation Advisory
Services Pty. Limited, ACN 064 133 946, Commonwealth Bank of Australia, ACN
123 123 124 as Party A and MLIA as the Standby Swap Provider, dated as of
[ ] as trustee of the Series Trust (the "Agreement"), including, in case of
default, interest on any amount due, when and as the same shall become due
and payable, whether on the scheduled payment dates, at maturity, upon
declaration of termination or otherwise, according to the terms thereof; and
(b) Commonwealth Bank of Australia, ACN 123 123 124 ("CBA") the due and punctual
payment of any and all amounts payable by MLIA to CBA under the terms of the
Agreement, including all amounts due under Parts 5(24)(b), (d) and (e) of
the schedule to the Agreement.
In case of the failure of MLIA punctually to make any such payment, ML & Co.
hereby agrees to make such payment, or cause such payment to be made, promptly
upon demand made by the Company (in the case of amounts referred to in paragraph
(a)) or CBA (in the case of amounts referred to in paragraph (b)) to ML & Co.;
provided, however that delay by the Company or CBA (as the case may be) in
giving such demand shall in no event affect ML & Co.'s obligations under this
Guarantee. This Guarantee shall remain in full force and effect or shall be
reinstated (as the case may be) if at any time any payment guaranteed hereunder,
in whole or in part, is rescinded or must otherwise be returned by the Company
or CBA upon the insolvency, bankruptcy or reorganization of MLIA or otherwise,
all as though such payment had not been made.
ML & Co. hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Agreement; the
absence of any action to enforce the same; any waiver or consent by the Company
or CBA concerning any provisions thereof; the rendering of any judgment against
MLIA or any action to enforce the same; or any other circumstances that might
otherwise constitute a legal or equitable discharge of a guarantor or a defense
of a guarantor. ML & Co. covenants that this guarantee will not be discharged
except by complete payment of the amounts payable under the Agreement. This
Guarantee shall continue to be effective if MLIA merges or consolidates with or
into another entity, loses its separate legal identity or ceases to exist.
ML & Co. hereby waives diligence; presentment; protest; notice of protest,
acceleration, and dishonor; filing of claims with a court in the event of
insolvency or bankruptcy of MLIA; all demands whatsoever, except as noted in the
fourth paragraph hereof; and any right to require a proceeding first against
MLIA.
ML & Co. hereby certifies and warrants that this Guarantee constitutes the valid
obligation of ML & Co. and complies with all applicable laws.
This Guarantee shall be governed by, and construed in accordance with, the laws
of the State of New York.
This Guarantee may be terminated at any time by notice by ML & Co. to the
Company and CBA given in accordance with the notice provisions of the Agreement,
effective upon receipt of such notice by each of the Company and CBA or such
later date as may be specified in such notice; provided, however, that this
Guarantee shall continue in full force and effect with respect to any obligation
of MLIA under the Agreement entered into prior to the effectiveness of such
notice of termination.
35
This Guarantee becomes effective concurrent with the effectiveness of the
Agreement, according to its terms.
The obligations of ML & Co. to the Company and CBA under this Agreement are
several and may be enforced by each of the Company and CBA without reference to
the other.
IN WITNESS WHEREOF, ML & Co. has caused this Guarantee to be executed in its
corporate name by its duly authorized representative.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., INC.
By:
Name:
Title:
Date:
36
Paragraph 13 to New York Law Credit Support Annex
(13) Elections and Variables
(a) Security Interest for "Obligations"
The term "Obligations" as used in this Annex includes the additional
obligations referred to in Paragraph 13(m)(vii)(B).
"Base Currency" means US$.
"Eligible Currency" means the Base Currency and any other currency
agreed from time to time between Party A, Party B, the Standby Swap
Provider and each Rating Agency.
(b) Credit Support Obligations
(i) Delivery Amount and Return Amount
"Delivery Amount" for a Valuation Date means the amount of
collateral calculated in accordance with Part 5(22)(d)(i) for
that Valuation Date.
"Return Amount" for a Valuation Date means the amount of
collateral calculated in accordance with Part 5(22)(d)(ii) for
that Valuation Date.
(ii) Eligible Collateral. The following items will qualify as
"Eligible Collateral" for Party A provided that the items
specified in paragraphs (E), (F), (G) and (H) will only qualify
as "Eligible Collateral" of Party A upon receipt by Party B and
the Standby Swap Provider of an opinion as to the perfection of
the Secured Party's security interest in such items in form and
substance (and issued by legal counsel) satisfactory to Party B
and the Standby Swap Provider:
Valuation
Percentage
(A) negotiable debt obligations issued by 98%
the U.S. Treasury Department having a
remaining maturity of not more than
one year
(B) negotiable debt obligations issued by 95%
the U.S. Treasury Department having a
remaining maturity of more than one
year but not more than five years
(C) negotiable debt obligations issued by 93%
the U.S. Treasury Department having a
remaining maturity of more than five
years but not more than ten years
(D) negotiable debt obligations issued by 90%
the U.S. Treasury Department having a
remaining maturity of more than ten
years
(E) Agency Securities having a remaining 97%
maturity of not more than one year
(F) Agency Securities having a remaining 94%
maturity of more than one year but
not more than five years
(G) Agency Securities having a remaining 92%
maturity of more than five years but
37
not more than ten years
(H) Agency Securities having a remaining 89%
maturity of more than ten years.
(I) cash in an Eligible Currency. 100%
(J) other Eligible Credit Support and
Valuation Percentage agreed by the
parties and acceptable to each Rating
Agency
Notwithstanding the foregoing to the contrary, the Valuation
Percentage with respect to all Eligible Credit Support shall be
deemed to be 100% with respect to a Valuation Date which is an
Early Termination Date.
"Agency Securities" means negotiable debt obligations which are
fully guaranteed as to both principal and interest by the Federal
National Mortgage Association, the Government National Mortgage
Corporation or the Federal Home Loan Mortgage Corporation and
which have been assigned a short term credit rating of A-1+ by
S&P, but exclude: (i) interest only and principal only
securities; and (ii) collateralised mortgage obligations, real
estate mortgage investment conduits and similar derivative
securities.
(iii) Other Eligible Support
Not applicable.
(iv) Thresholds
(A) "Minimum Transfer Amount" means with respect to both Party A
and Party B: US$100,000.
(B) Rounding. The Delivery Amount and the Return Amount will be
rounded to the nearest integral multiple of US$10,000.
(c) Valuation and Timing
(i) "Valuation Agent" means Party A.
(ii) "Valuation Date" means the last Business Day of each week and, at
the option of either Party A or the Standby Swap Provider, any
Business Day between Valuation Dates.
(iii) "Valuation Time" means the close of business on the Business
Day before the Valuation Date; provided that the calculations of
Value and Exposure will be made as of approximately the same time
on the same date.
(iv) "Notification Time" means 11:00 am New York time on the second
Business Day after the Valuation Date.
(d) Conditions Precedent and Secured Party's Rights and Remedies
There are no "Specified Conditions" applicable to Party A. The
following is a Specified Condition with respect to Party B:
"If an Early Termination Date has been designated in respect of the
each Transaction provided that if an amount is due by Party A to Party
B in respect of that Early Termination Date pursuant to Section 6,
that amount has been paid in full."
38
(e) Substitution
(i) "Substitution Date" has the meaning specified in paragraph
4(d)(ii).
(ii) Consent. Not applicable.
(f) Dispute Resolution
(i) "Resolution Time"" means 11:00 am New York time.
(ii) "Value". Not applicable.
(iii) "Alternative". The provisions of Paragraph 5 will apply.
(g) Holding and Using Posted Collateral
(i) Eligibility to Hold Posted Collateral; Custodians.
Party A: Not Applicable.
Party B is not entitled to hold Posted Collateral. It must appoint
a Custodian to hold Posted Collateral on its behalf pursuant to
paragraph 6(b). Party B may only appoint a Custodian to hold Posted
Collateral on its behalf if the following conditions are satisfied:
(A) Party B is not a Defaulting Party;
(B) Party B's Custodian will always be the Principal Paying
Agent, unless that party is Party A; and
(C) if the Principal Paying Agent is Party A, then Party B must
appoint a Custodian which is a Bank (as defined in the Federal
Deposit Insurance Act, as amended) outside Australia, whose
rating (with respect to its long term unsecured,
unsubordinated indebtedness) is at all times at least Aa2 by
▇▇▇▇▇'▇ and its short term debt rating is A-1+/F-1+ (S&P/
Fitch ), and Party B must notify Party A in writing of this
appointment and of the relevant account for Paragraph 13(l).
(D) Posted Collateral may only be held in one or more accounts in
the name of Party B in the United States and any account
established by Party B's Custodian to hold Posted Collateral
shall be established and maintained for the sole purpose of
receiving deliveries of and holding Posted Collateral.
(ii) Use of Posted Collateral. The provisions of paragraph 6(c) will
not apply to Party B and its Custodian. Party B's Custodian will
permit Party B to secure Party B's obligations under the relevant
Class A-1 Notes by granting to the Security Trustee the charge
under the Security Trust Deed over Party B's rights in relation to
the Posted Collateral, but subject to Paragraph 13(m)(vi) of this
Annex.
(h) Distributions and Interest Amount
(i) Interest Rate. The "Interest Rate", in respect of Posted
Collateral which is denominated in US$, for any day means the
Federal Funds Overnight Rate. For the purposes hereof, "Federal
Funds Overnight Rate" means, for any day, an interest rate per
annum equal to the rate published as the Federal Funds Effective
Rate that appears on Telerate Page 118 for such day. The
"Interest Rate" in respect of Posted Collateral denominated in
any other Eligible Currency means the rate as agreed between the
parties.
39
(ii) Transfer of Interest Amount. The Transfer of Interest Amount will
be made monthly on the second Business Day of each calendar
month.
(iii) Alternative to Interest Amount. The provisions of Paragraph
6(d)(ii) will apply.
(i) Additional Representation(s)
None.
(j) Other Eligible Support and Other Posted Support
"Value" and "Transfer" with respect to Other Eligible Support and
Other Posted Support means: not applicable.
(k) Demands and Notices
All demands, specifications and notices under this Annex will be made
pursuant to the Section 12 of this Agreement; provided, that any such
demand, specification or notice may be made by telephone ("Telephone
Notice") between duly authorised employees of each party if such
Telephone Notice is confirmed by a subsequent written instruction
(which may be delivered via facsimile) by the close of business of the
same day that such Telephone Notice is given.
(l) Addresses for Transfers
Party A: Party A to specify account for returns of collateral.
Party B: Party B must notify Party A of its Custodian's account.
(m) Other Provisions
(i) Paragraph 4(b) of the Annex is replaced by the following:
"(b) Transfer Timing. Subject to Paragraph 4(a) and 5 and unless
otherwise specified, if a demand for the Transfer of
Eligible Credit Support or Posted Credit Support is made by
the Notification Time, then the relevant Transfer will be
made within three Business Days of receipt of the demand;
if a demand is made after the Notification Time, then the
relevant Transfer will be made within four Business Days of
receipt of the demand."
(ii) Event of Default
Joint Ratings below specified levels
Paragraph 7(i) of the Annex is amended, on line 3, by replacing
"two Business Days" with "three Business Days".
(iii) Party B's expenses
Subject to Section 15 of the Agreement, Party B agrees to pay
Party A's costs and expenses in relation to or caused by any
breach by Party B of its obligations under this Annex. Party A
acknowledges and agrees that its obligations under this Annex
will not be affected by a failure by Party B to comply with its
obligations under this paragraph (m)(iii).
(iv) Governing Law notwithstanding
Notwithstanding that the Agreement is expressed to be governed
by the laws of
▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, this Annex (but not any other provisions of the
Agreement) shall be governed by and construed in accordance with
the laws of the state of New York without giving effect to choice
of law doctrine and parties hereto agree that proceedings
relating to any dispute arising out of or in connection with this
Annex shall be subject to the non-exclusive jurisdiction of the
federal or state courts of competent jurisdiction in the Borough
of Manhattan in New York City, State of New York.
(v) No trial by jury
Each party waives, to the fullest extent permitted by applicable
law, any right it may have to a trial by jury in respect of any
suit, action or proceeding relating to this Annex.
(vi) No pooling of Collateral with other Security Trust security
Notwithstanding any provision in the Master Trust Deed, the
relevant Series Supplement or the relevant Security Trust Deed,
but without prejudice to Party B's rights under Paragraph 8(a) of
this Annex, no party shall be entitled to deal with the Posted
Collateral in any manner inconsistent with the rights of the
Pledgor under Paragraphs 3(d), 4(b) or 8(b)(iii) of this Annex,
and each party covenants to the other that it shall not permit
any other person to gain any rights in relation to the Posted
Collateral that are inconsistent with the rights of the Pledgor.
(vii) Rights in Relation to CBA's Posted Collateral Following Novation
(A) The Secured Party will hold its security interest in, lien
on and right of Set- Off against all Posted Collateral
Transferred or received by the Secured Party from CBA as
Party A (or from the Standby Swap Provider on behalf of CBA
as Party A but not from the Standby Swap Provider in its
capacity as Party A) hereunder on trust for the benefit of:
(1) the Series Trust as security for the Obligations of
CBA as Party A to the Secured Party as trustee of the
Series Trust (other than pursuant to Paragraph
13(m)(vii)(B)); and
(2) the Standby Swap Provider as security for the
Obligations of CBA as Party A to the Standby Swap
Provider pursuant to Parts 5(24)(d) and (e) of the
Schedule to this Agreement and all CBA's present and
future obligations to the Standby Swap Provider under
Paragraph 13(m)(v) of the credit support annex to the
MLIA/CBA ISDA Master Agreement,
in accordance with the provisions of this Paragraph
13(m)(vii), and Paragraph 2 is varied accordingly.
(B) CBA as Party A covenants in favour of the Secured Party that
it will duly and punctually pay to the Secured Party:
(1) all its Obligations to the Standby Swap Provider
pursuant to Part 5(24)(d) and (e) of the Schedule to
this Agreement; and
(2) all its present and future obligations to the Standby
Swap Provider under Paragraph 13(m)(v) of the credit
support annex to the MLIA/CBA ISDA Master Agreement,
as and when the same fall due for payment. Notwithstanding
the foregoing, every payment by CBA as Party A, or the
Secured Party in
41
accordance with Paragraph 13(m)(vii)(C)(2)(b), to the
Standby Swap Provider will operate as a payment by CBA as
Party A to the Secured Party in satisfaction of CBA's
obligations as Party A pursuant to this Paragraph
13(m)(vii)(B). The Secured Party will hold the benefit of
its rights under this Paragraph 13(m)(vii)(B) on trust for
the Standby Swap Provider in accordance with the provisions
of this Paragraph 13(m)(vii).
(C) The Secured Party must deal with all Posted Collateral
Transferred or received by the Secured Party from CBA as
Party A (or from the Standby Swap Provider on behalf of CBA
as Party A but not from the Standby Swap Provider in its
capacity as Party A) hereunder:
(1) prior to the Novation Date, in accordance with the
provisions of this Agreement other than this
Paragraph 13(m)(vii);
(2) on or after the Novation Date:
(a) until the date upon which the Standby Swap
Provider has initially fulfilled its
obligations as Party A pursuant to Part
5(22)(a) of the Schedule to this Agreement,
such Posted Collateral must be held by the
Secured Party and not Transferred or otherwise
applied;
(b) on or after the date upon which the Standby
Swap Provider has initially fulfilled its
obligations as Party A pursuant to Part
5(22)(a) of the Schedule to this Agreement and
until CBA as Party A has paid in full all of
its Obligations to the Standby Swap Provider
pursuant to Parts 5(24)(d) and (e) of the
Schedule to this Agreement and all its present
and future obligations to the Standby Swap
Provider under Paragraph 13(m)(v) of the
credit support annex to the MLIA/CBA ISDA
Master Agreement, the Secured Party must, upon
the instructions of the Standby Swap Provider,
exercise the rights and remedies pursuant to
Paragraph 8(a) in respect of such Posted
Collateral, and Party A agrees that the
Secured Party may exercise such rights and
remedies under Paragraph 8(a) to the same
extent and with the same effect as if an Event
of Default or Specified Condition had occurred
with respect to Party A, and apply the
proceeds of the exercise of such rights and
remedies in satisfaction of CBA's Obligations
as Party A to the Standby Swap Provider
pursuant to Parts 5(24)(d) and (e) of the
Schedule to this Agreement and CBA's present
and future obligations to the Standby Swap
Provider under Paragraph 13(m)(v) of the
credit support annex to the MLIA/CBA ISDA
Master Agreement (and to the Secured Party
pursuant to Paragraph 13(m)(vii)(B)) until all
such Obligations have been paid in full; and
(c) on or after the date upon which the Standby
Swap Provider has initially fulfilled its
obligations as Party A pursuant to Part
5(22)(a) of the Schedule
42
to this Agreement and CBA as Party A has paid
in full all its Obligations to the Standby
Swap Provider pursuant to Parts 5(24)(d) and
(e) of the Schedule to this Agreement and all
its present and future obligations to the
Standby Swap Provider under Paragraph 13(m)(v)
of the credit support annex to the MLIA/CBA
ISDA Master Agreement (including by virtue of
Paragraph 13(m)(vii)(C)(2)(b)), the Secured
Party must Transfer to CBA as Party A all such
Posted Collateral and the Interest Amount in
relation to such Posted Collateral, if any.
(D) The Standby Swap Provider indemnifies the Secured Party from
and against any cost or liability incurred by the Secured
Party in complying with the instructions of the Standby Swap
Provider pursuant to Paragraph 13(m)(vii)(C)(2)(b). The
Standby Swap Provider acknowledges and agrees that the
Secured Party may not, and is not required, to take any
action to exercise its rights and remedies in relation to
the Posted Collateral in respect of the Obligations of CBA
as Party A to the Standby Swap Provider except upon the
directions of the Standby Swap Provider and in accordance
with this Paragraph 13(m)(vii).
(E) Following the Novation Date, the Secured Party must ensure
that any Posted Collateral Transferred or received by the
Secured Party from CBA as Party A is held by the Custodian
separately from, and is not co-mingled with, Posted
Collateral Transferred or received by the Secured Party from
the Standby Swap Provider as Party A.
(F) This paragraph 13(m)(vii) applies notwithstanding any other
provision of this Agreement.
(viii) Pledgor and Secured Party
In this Annex:
(a) "Pledgor" means only Party A; and
(b) "Secured Party" means only Party B.
(ix) Non-Australian Assets
CBA as Party A must only Transfer Posted Collateral to the
Secured Party from its assets held outside Australia.
(x) Dispute Resolution
Paragraph 5(i) is amended by:
(A) replacing the word "Exposure" with the words "the Delivery
Amount or the Return Amount, as the case may be" in the
first paragraph of Paragraph 5(i);
(B) adding the word "and" at the end of Paragraph 5(i)(A) and
deleting Paragraph 5(i)(B).
(xi) Specified Condition
(A) In Paragraph 4(a)(ii) the words "or Specified Condition" are
deleted.
43
(B) In Paragraph 8(b) the words "or Specified Condition" are
deleted and replaced with the following "with respect to the
Secured Party or a Specified Condition has occurred".
44